CEI Comments on Revision of the Regulations for Listing Species and Designating Critical Habitat

The Endangered Species Act has proven bad for wildlife because it is bad for people.  The Act’s legislative language as passed by Congress is largely to blame, but implementing rules adopted by the agencies have contributed significantly to its failings.  Thus the Competitive Enterprise Institute strongly supports the proposed revisions to the rules.  Most of these changes are long overdue.  In some instances, we think that the proposed changes could go further, but we also recognize that in other instances going further will require Congress to amend the statute.

This proposed revision includes changes to the regulations used to implement aspects of the ESA’s Section 4. Not all elements of the proposed regulation have been addressed, but where they have been addressed they are listed under the same bold heading used within the proposed regulation.

Section 424.11

Economic Impacts

FWS has proposed revising a regulation that prohibited the discussion of economics in listing rules. However, the law only prohibits the consideration of economics in a five-factor analysis carried out in accordance with Section 4(a) of the ESA. The law does not preclude discussion of economic impacts and, as the Services in fact point out, there is precedent for doing so as the EPA does with National Ambient Air Quality Standards. The intention behind the law would seem to be to ensure that the determination as to whether a species is endangered or threatened is to be based solely on the five factors enumerated by Congress in 4(a) and which do not include economic impacts. There is, however, no prohibition against discussing the economic impact of the determination. The Services do conduct economic impact analysis in association with the designation of critical habitat and in doing so have often differentiated and identified those costs associated with listing and those “incremental” costs associated with the designation of critical habitat, meaning the costs beyond those that stem from the listing decision. However, obscuring the economic impact of one regulation by simply referencing as a “baseline” found in an altogether different regulation creates an overly complicated process that few know how to navigate. It is straightforward and sensible to present economic discussion within the regulation that actually triggers the costs. Doing so does not change the data that can and will be considered in a listing determination, but does improve transparency as regards implementation of the program. Additionally, as proposed, the regulation does not even require economic discussion in a listing, but only allows it. For the reasons outlined above, it makes sense to make this approach available to the Services; and as there is little well-organized and accessible information on the economic costs of implementing the ESA, permitting discussion of economic impacts in listing documents would be beneficial to policy makers.

The administrative and recovery costs of the ESA have been obscured for decades by faulty reporting practices.  The far larger costs of listing and critical habitat designations to private parties have seldom been considered, let alone .  The Competitive Enterprise Institute published a report by Robert Gordon in August that surveys some of the costs that have been identified by FWS.  A copy of this report, “‘Whatever the Cost’ of the Endangered Species Act, It’s Huge,” is submitted separately as part of CEI’s comment.  It is also available at https://cei.org/sites/default/files/Robert_Gordon_-_%E2%80%9CWhatever_the_Cost%E2%80%9D_of_the_Endangered_Species_Act%2C_It%E2%80%99s_Huge.pdf.  It is our hope that this paper could help the Services develop new practices for accounting for and reporting the costs of the Endangered Species Program.  

Foreseeable Future

DOI has proposed establishing a “framework” for how the Services will consider the inherently difficult term “foreseeable future.” Congress included this term within the definition of threatened species, Sec. 3(20): “any species which is likely to become endangered within the foreseeable future throughout all or a significant portion of its range.” (emphasis added) The Services are not proposing any change in the way they interpret the term, but simply propose to amend current regulations to reflect the current policies that are based on a 2009 DOI Solicitor’s Opinion.^[1] The objective of the proposed amendment is to provide guidance in the determination of threatened species, so that threats analyzed are probable and not just possible so as to avoid hypothetical speculation. Ensuring that speculative, hypothetical, or improbable threats do not confound five-factor analysis that, in accordance with Sec. 4(b)(1)(a), is to be conducted using best scientific and commercial data available should improve the accuracy with which such determinations are made, increasing the program’s focus upon species more likely to face probable, non-speculative threats.

The proposed language is clearly and plainly written:

In determining whether a species is a threatened species, the Services must analyze whether the species is likely to become an endangered species within the foreseeable future. The term foreseeable future extends only so far into the future as the Services can reasonably determine that the conditions potentially posing a danger of extinction in the foreseeable future are probable. The Services will describe the foreseeable future on a case-by-case basis, using the best available data and taking into account considerations such as the species’ life-history characteristics, threat-projection timeframes, and environmental variability. The Services need not identify the foreseeable future in terms of a specific period of time, but may instead explain the extent to which they can reasonably determine that both the future threats and the species’ responses to those threats are probable.

Seeking to ensure that five-factor determinations are focused on threats that are reliably predictable should improve program implementation as hypothetical and speculative threats have been incorporated into petitions to list as well as listing determinations for threatened species.

For example, upon reviewing a petition to relist the Tinian monarch, the FWS determined that it might be warranted. The petition argued one of the threats facing the species was the potential stochastic event of a typhoon striking the island of Tinian in the Commonwealth of the Northern Mariana Islands. FWS made a “may be warranted” finding with regard to a petition to list the Tinian monarch as a threatened or endangered species.^[2] One of the threats identified in the petition is the possibility that the island would be struck by a typhoon threatening the bird’s future.^[3] The bird, one of the most numerous bird species on the island, had already been listed and delisted before the may-be-warranted decision and had survived typhoons in the past, including one during the Second World War when the island had been relentlessly barraged by battleships, bombed with napalm, and shelled by artillery from a neighboring island.^[4]

While FWS may have given more weight to other factors in regard to the Tinian monarch petition, a threatened Hawaiian plant, Aqyroxiphium sandwicense ssp. macrocephalum, was listed as threatened with the single biggest threat being a possible, single undescribed “destructive event.” An estimated 50,000 individuals of this plant occupy “essentially all of [the species’] historical habitat.” The habitat consists of about 2,500 acres of bare gravel, debris, and cinders at an elevation of 6,900 to 9,800 feet within the crater of the dormant but not extinct Haleakala Volcano. At listing, FWS addressed threats facing the species stating: “Today, although this taxon receives legal protection within Haleakala National Park vandalism and illegal collection continue on a small scale. The goats and cattle have been removed from silversword habitat but still pose a potential threat due to the possibility of ingress. Currently, the greatest threat to this taxon is restricted range. One destructive event could possibly extirpate a significant portion of the plants.” ^[5] (emphasis added)

Similarly, according to the Services, substantial sea level rise may not only inundate much of Miami but also, according to FWS, cause the Florida pineland crabgrass to go extinct. In its determination of threatened status for the crabgrass, FWS states: “Based on a higher sea level rise of 1.8 m (6 ft.), as projected by NOAA, much larger portions of urban Miami-Dade County, including both extant populations of Digitaria pauciflora… will be inundated by 2100. As a result, the species would be extinct.”^[6] (emphasis added) It is difficult to imagine that concerns over Florida Pineland crabgrass would not be overshadowed by other catastrophic effects caused by such an event.

While typhoons, volcanic eruptions, and inundation of major coastal cities may constitute “other natural or manmade factors [that might affect a species’] continued existence,” speculating about them in analysis applied to a single species and attempting to address such threats through the ESA makes no sense. Meteors striking Earth could pose a threat to many species and, in fact, may have caused more extinctions than any other events. However, it makes no sense to speculate about and attempt to address such hypothetical events through the ESA when species face far more probable threats that are much more readily addressed through conservation actions. This type of speculation in consideration of threats faced by species cannot help but confound analysis and is highly likely to shift conservation dollars away from some species that clearly face more demonstrable, immediate, and addressable threats.

Factors Considered in Delisting Species

The Services seek to make clear through the proposed regulations that the process for making a determination to add or to remove a species from the List of Endangered and Threatened Animals and the List of Endangered and Threatened Plants (List) is conducted in accordance with the ESA. The ESA enumerates the five factors that are to be considered in making all such determinations for species with only those plants and animals that meet the Act’s statutory definition of species being legally eligible for listing. Essentially, the five-factor analysis leads to one of two conclusions. The species in question either merits listing or it does not. The Services point out that they currently attribute determinations to remove a species from the list on the grounds that the species has 1) recovered, 2) gone extinct, or 3) was included on the list based on erroneous data.

The proposed regulation is a tighter fit to the plain language of the ESA and is therefore reasonable and should add legal clarity. In the proposal, the Services note that this does not mean the agencies will necessarily avoid attributing the reason for change from one five-factor analysis to a subsequent five-factor analysis to an overall cause such as recovery.

Determining which species have recovered is required. In fact, as Section 4(g) requires the Secretary to conduct post-delisting monitoring for all species that have recovered and been removed from the list, the Secretary must at least determine which species will necessitate such monitoring as it would make no sense and waste resources to monitor a species that has been delisted and is extinct. Likewise it would make no sense and waste resources to monitor species which were originally added to the list on the basis of data that was sufficiently erroneous as to make the original determination erroneous or which were subsequently found to be an invalid or ineligible taxon or belong to a taxon that was subsequently revised and, as a consequence, determined not to merit listing. Essentially, by requiring post-delisting monitoring of recovered species, the Act, at least, requires the determination as to whether a delisted species has “recovered.”

Program Transparency and Accountability: Consistently providing the reason for a change between a five-factor analysis that led to listing and a subsequent analysis that leads to delisting arguably provides the single most important metric for the effectiveness of implementation of the ESA. After all, in Sec. 3(20) the Act defines conservation as “the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary.” (emphasis added) However, as addressed above, there are reasons other than successful conservation efforts that may cause the Services to make a determination that a species no longer merits inclusion on the list. Documenting the general reasons why a five-factor analysis has changed over time creates a valuable public record of program implementation, thereby increasing transparency and accountability. Inclusion of this data is even more important given that FWS has ceased reporting species’ “status” as had been done in all Reports to Congress on the recovery program up to and including the FY 2009–10 report. FWS now only reports the status per a five-year analysis. Consequently, even if all such five-year analyses are conducted in a timely fashion, the same data point may be used for three consecutive reports covering more than a half decade. This would increase opacity and reduce accountability.

Consistent use of terms: The Services have used the terms “recovered”, “extinct” and “original data in error.” Documenting that a species has recovered highlights successful conservation. Likewise, understanding what data may have led to an original five-factor analysis being in error may help promote better future implementation of the Act. Measurement, transparency, accountability, and credibility will be furthered by a clear, unambiguous accounting of ESA implementation that is consistent, including the consistent use of terms.

Limiting Five-Factor Analysis to Appropriate Criteria Should Improve Program Implementation: Properly conducted five-factor analysis should improve the integrity of the list of endangered and threatened species and improve the targeting of scarce resources. Analysis within five-year reviews for many species often reaches the conclusion that no change in species status is necessary as recovery criteria from non-regulatory recovery plans have not been met. Often, this is even the case when data collected subsequent to listing and writing of the recovery plan criteria reveals that the original determination was significantly based on erroneous data.

For example, such is the case with the flat-spired three-toothed land snail. At the time of listing, the snail was known from only one site in a West Virginia gorge.^[7] The snail’s recovery plan established two different options for recovering the snail. One option was in the event that less than three additional sites were found, and another option was in the event that the snail was found to inhabit at least three additional sites.^[8] Depending on the number of subsequent sites discovered, different additional criteria for delisting apply, including ensuring 80% or 60% of the habitat is protected, establishing a long term management and monitoring program, and positive indications from ten years of monitoring.^[9]

The number of identified snail sites rose to 99, which dramatically expanded the snail’s known habitat and numbers.^[10] Yet, a five-year review conducted thirty years after listing still recommended no change in status as some of the other recovery plan criteria had not been met.^[11] For example, the review points out that “roughly one-third of the occupied sites” are on private land and thus are presumed to face “continuing threats from human impacts.”^[12] While this might be true, the recovery plan only required a minimum of 80% of a handful of sites be protected.^[13] There are, according to the 5-year review, about 66 sites that fall within a state park or wildlife management area. The review also notes that a managing and monitoring plan has not been fully implemented and consequently data on the number and trends of individual populations is lacking.^[14] These criteria, however, were established when there were only “several discrete sites” known.^[15] Clearly, applying these same criteria when the number of known sites has increased almost 100-fold since listing makes no sense. However, according to the five-year review:

“The fundamental question is whether [the flat-spired three-toothed land snail] is in danger of extinction throughout all or a significant portion of its range (the ESA definition of endangered) or is likely to become so in the foreseeable future (ESA definition of threatened). The information pertinent to addressing this is (1) the population status of [the snail], (2) the implementation and success of recovery actions and, (3) threats to the long term survival of the species.”[16] (emphasis added)

The five-year review’s analysis reaches the conclusion that no change is needed from the species’ threatened status. A five-factor determination conducted in accordance with the ESA rather than an analysis that uses out-of-date recovery plan criteria as a gage would hopefully yield better results.

Avoid Extraneous Analysis: When a species is determined to be taxonomically invalid or extinct, it should be delisted, but the rule to do so should not include a five-factor analysis as this is extraneous information and therefore wastes a limited budget. Exclusion of such analysis was done in the case of the Eastern puma.^[17] Such rules should be limited to sufficient information necessary to establish a reasonable basis for the determination that the species is ineligible for inclusion on the list because it does not meet the statutory definition of species or has been determined to be extinct.

Avoid Wasteful Post-Delisting Monitoring: As addressed above, a determination that a species is or is not endangered or threatened should be conducted on the basis of a five-factor analysis. However, as the ESA’s provisions at Sec.4 (g)(1) require post-delisting monitoring for “all species which recovered” and have been delisted, it is essential to indicate not only that a species which had been determined to be threatened or endangered is no longer so, but also if this changed determination is in significant part attributable to recovery. If this is not done, further unnecessary costs and regulatory burden and therefore waste of scarce conservation resources may be triggered under the provisions of the ESA as well as through regulations of other agencies such as the Bureau of Land Management and U.S. Forest Service.

For example, Johnston’s frankenia and Hoover’s wooly-star, two species for which the determination to list was based on population data that was low by magnitudes of order, were both delisted as recovered.^[18] Consequently, although clearly not needed because the species were delisted as recovered, post-delisting monitoring plans were required under Sec. 4(g)(1), thereby leading to further waste.

It is possible that a determination that a species is no longer endangered or threatened may stem from both data used in the original five-factor analysis having been in error as well as actual improvement in the condition of the species. In instances where both original data were in error and there have been measurable gains towards recovery after listing, a “but for” test should be employed to determine if the original endangered or threatened determination was so far in error that the species never actually merited listing. In other words, but for the erroneous data and resulting analysis used at the time of listing, the species would not have been listed. If this is true, then, even if the species benefited from actions taken after listing, the species should have never been listed and therefore the subsequent determination that the species is not endangered or threatened would be attributable to recovery. If the species would have been determined to be endangered or threatened even if accurate data had been used, then recovery contributed to a significant degree to a subsequent determination that the species was no longer endangered or threatened. In such instances, the Services could apply a simple relative weighting by identifying if the new determination was “predominately attributable” to recovery or to original data error or that the new determination was “attributable to both.” In either case, if the species recovery was significant, then post-delisting monitoring is likely required.

Other Comments: Additional Modifications

Correcting the Historical Record. The FWS has removed a number of species and attributed the determination to the species being recovered when, in fact, the original determination that the species was threatened or endangered was a result of analysis or data used in that analysis being in error. Subsequent data showed in many cases that the distribution or numbers of a species or the severity of a threat was overestimated or entirely inaccurate. In some cases, the taxonomy of the species was subsequently determined to be invalid.

For example, Hoover’s woolly star is a clear example of a species for which the numbers and distribution data used in determining the species was threatened were grossly in error. After the plant was listed, just one of four metapopulations was determined to number over 100,000,000.^[19] Eggert’s sunflower is an example of a species for which threats were overestimated. Activities considered a threat, such as grass cutting done as part of roadside maintenance, may actually be beneficial to this species.^[20] Another species determined to have “recovered” is the Maguire daisy which was subsequently determined to be not only more numerous, but also not distinct from another plant that was not a listed species.^[21]

Delisted species for which the determination was that the species was no longer endangered or threatened and for which this change in status was or likely was inaccurately attributed to ‘recovery’ include, but are not limited to: gypsum wild buckwheat, Hoover’s wooly star, island night lizard, Johnston’s frankenia, Lake Erie water snake, Lesser long-nosed bat, Louisiana black bear, Maguire daisy, Modoc sucker, Oregon chub, Palau dove, Palau owl, Palau fantail flycatcher, Virginia flying squirrel, Tennessee coneflower, Tinian monarch, and white-haired goldenrod.^[22]

For purposes of accuracy, transparency, and credibility for these and other species, a correction should be issued indicating that the delisting classification as “recovered” was inaccurate because the five-factor analysis for the species relied on substantially flawed data and the species likely never merited inclusion as an endangered or threatened species.

Section 424.12

Not Prudent Determinations

Improving Section 4’s Required Reporting: Section 4(f)(3) states: “The Secretary shall report every two years to the Committee on Environment and Public Works of the Senate and the Committee on Merchant Marine and Fisheries of the House of Representatives on the status of efforts to develop and implement recovery plans for all species listed pursuant to this section and on the status of all species for which such plans have been developed.” The reports that FWS has produced to meet this obligation have generally included all or nearly all species that were listed during the relevant reporting period. As a species may not have a recovery plan or may not have had one during a specific reporting period, inclusion of all species in the report is good for transparency and accountability.

For most reports, FWS included a “status” measure that had the possible values of “improving,” “stable,” “declining,” “unknown,” and “extinct.” The Service also reported another progress measure called Recovery Objective Achieved (ROA). This is a percentage-based measurement that assigned each species a value indicating that 0–25 percent, 26–50 percent, 51–75 percent, or 76–100 percent of recovery had been achieved. The status and ROA measurements were the only uniform, non-anecdotal measurements regularly collected that shed light on the efficacy of implementing the ESA. However, the FWS with the 2009-10 report ceased reporting the status measurement and with the 2005–2006 report ceased reporting ROA.

In place of these measurements, the Service substituted a number of generally less informative measurements including the “number of actions implemented,” “estimated cost to recovery,” “estimated years to recover;” and the date of the last statutorily-required five-year review for a species and the review’s recommendation.

The “number of actions implemented” is the total number of recovery actions identified in the implementation schedules of recovery documents that are considered completed. Some of the problems were addressed in a report published earlier this year by the Heritage Foundation: “For example, two of the first species listed in the 2013–14 report, the golden coqui (a frog) and the California red-legged frog, are reported to have 3 and 38 recovery actions implemented, respectively. These, however, are the same numbers reported in two prior reports and somehow decreased since the fiscal years 2007–08 report that indicated 6 recovery actions and 104 recovery actions had been completed, respectively. Further, if a reader did not know to check prior years’ reports that included the status measurement, it would not be evident that the Service believes, or previously believed, that the golden coqui is extinct. Moreover, given that implementation schedules come from recovery planning documents that differ dramatically from species to species, the raw numbers are nearly if not entirely useless for comparison.”[23] Outside the context of the plan, they do not mean much.

The Heritage report also explained that: “‘Estimated cost to recovery’ and ‘estimated years to recover’ are likewise drawn from recovery plans or other similar documents. Recovery plans are not regulatory documents, and consequently these numbers are just estimates that have no force and are often incomplete, vague, or lacking altogether. Of the first page of species listed in the 2013–2014 report, 17 of 24 have no estimated recovery cost and no estimated time to recovery”.[24]

Additionally, the timeline and cost estimate are tied to the year the plan was adopted. However, the plan may have not been funded or implemented. Further, plans are often eclipsed by realities on the ground and therefore may bear little relationship to the current state of events as regards one particular species. For these reasons, this data is not particularly helpful. And because recovery plans and the estimated budget for them rarely change, including this data in a biannual report is of highly questionable value.

The relatively newer format also includes the five-year review status recommendation. This is useful data but it is only collected every five years at best. Consequently, the data from a single five-year review may simply be repeated for three or possibly more consecutive reports. According to the Heritage Foundation report, “By far the most common data provided for this field in the biannual report is “no change to listed status”—as is the case for the presumed extinct golden coqui.”[25]

More useful than the “number of actions implemented,” FWS could include a description (numerical value) of the total acres or river miles designated as critical habitat and the states in which this critical habitat occurs as well as whether a special 4(d) rule or the blanket rule is in effect for any given species. While neither of these data fields is likely to change frequently, having this data with regulatory consequences readily available in the reports provided to oversight committees would be of some value.

In any case, the measurements “status” and “recovery objective achieved” should be included in biannual reports to Congress; and if data were collected for previous years but not published, supplemental reports should be issued so that the data gaps may be filled to the extent possible.

Designating Unoccupied Areas

The proposed regulations add “an additional circumstance under section 424.12(a)(1)(iii) situations where critical habitat areas under the jurisdiction of the United States provide negligible conservation value for a species that primarily occurs in areas outside of U.S. jurisdiction.” The need for this provision is well exemplified by the wasteful designation of critical habitat for the jaguar.[26] Litigious environmental groups also pushed for a jaguar recovery plan. FWS’s Federal Register notice on a draft jaguar recovery plan provided a discussion of jaguar populations and habitat in the U. S. that reveals why both a recovery plan and critical habitat for the species are an utter waste of taxpayer dollars. The notice states, “The United States contains only a small proportion of the jaguar’s range and habitat, and the Service has limited resources and little authority to address the major threats (killing and habitat destruction) to the jaguar’s recovery outside its own borders. Also, our knowledge regarding the status of the species in much of its range is very limited, and we lack the resources and authority to coordinate large-scale international research and recovery for the entire species.”[27] (It is worth noting that the FWS estimated cost to implement the jaguar recovery plan is $605,648,000.[28])

FWS reports in its critical habitat regulations, “Swank and Teer (1989, p. 14) state that jaguars prefer a warm, tropical climate, usually associated with water, and are rarely found in extensive arid areas. Rabinowitz (1999, p. 97) affirms that the most robust jaguar populations have been associated with tropical climates in areas of low elevation with dense cover and year-round water sources.”[29] (emphasis added)  In essence, jaguars prefer areas that that do not match what has been designated as critical.

Not surprisingly, few jaguars have been documented along the southwest border, and this is unlikely to change regardless of regulatory burdens imposed and dollars wasted. The few individuals that have been documented are typically males likely dispersing from populations further to the south to the limits of the jaguar’s range which are in close proximity to the U. S.-Mexico border.[30] The three and only documented cases of a female with cubs are from the early 1900s, and no female has been documented in the U. S. for more than a half century.[31]

These occurrences are rare because the preferred habitat of the jaguar is outside the U. S. In Mexico, there are perhaps 4,000 jaguars which may be a tenth or even less of the populations than can be found further to the south and more specifically in the Amazon River basin.[32] Clearly, more than 99.9% of the jaguar population is found outside the U. S. where its preferred habitat and its truly critical — not legally critical — habitat exits.

Respectfully submitted,

Myron Ebell

Director, Center for Energy and Environment

Competitive Enterprise Institute

1310 L Street, N. W., Seventh Floor

Washington, DC 20005